JUDGMENT Per Justice Sham Sunder , President 1. This appeal by the Opposite party is directed against the order dated 26.5.2010, rendered by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh vide which the complaint of the complainant Pankaj Malhotra (now respondent) was allowed and the opposite party was directed to cancel the credit card of the complainant and reverse all bank charges thereon till date, and also to pay twice the value of the charges reversed, as penalty. It was further directed that the order be complied with within 45 days, from the date of receipt of its copy, failing which the OP was to pay the decretal amount alongwith interest @ 12% p.a. from the date of order, till realization. 2. The facts, in brief, are that the complainant accepted the offer made by an Executive of the Standard Chartered Credit Cards for issuance of credit card facility, in his name, and submitted the relevant documents. He was delivered the credit card by the OP. The complainant used the credit card regularly and paid the bills, as and when raised. In July, 2007, he was surprised to receive bill for Rs.3999/- on account of one time special fees for issuance of Gold Card, for which he had never made any request. He had also not received the said Gold Card. Thereafter, the Executives of the OP started harassing the complainant by asking him to pay the overdue amount. Despite protests by the complainant, the OP did not desist from demanding the amount, along-with interest. Left with no other alternative, the complainant filed a complaint against the OP. 3. In reply, it was admitted by the OP that the Complainant was issued Master Gold Credit Card in the month of June, 2005, with a credit limit of Rs.43,000/-. In July, 2007, the Complainant expressed his willingness to convert the existing Master Gold Credit Card to Titanium Credit Card, with one time special fee of Rs.3999/-. Accordingly, the amount was debited, to the account of the complainant in July, 2007. It was further stated that this amount was outstanding against the complainant. He was reminded time and again. It was further stated that as on September 11, 2009, an amount of Rs.22,720.93Ps. was due against the complainant. It was further stated that the complainant be directed to clear his outstanding bill, against the Credit Card. 4. After hearing Counsel for the parties and on going through the evidence/record, the learned District Forum passed the order referred to the opening para of the judgment. 5. Feeling aggrieved, the instant appeal was filed by the OP(now appellant) 6. We have heard Counsel for the parties and have gone through and perused the record carefully. 7. The learned Counsel for the appellant submitted that it was on the request of the complainant/respondent that his Master Gold Credit Card was converted into Titanium Credit Card, with one time special fee of Rs.3999/-. He further submitted that, under these circumstances, it could not be said that the amount of Rs.3999/- was illegally charged by the appellant, from the respondent. He further submitted that the District Forum fell into an error, in coming to the conclusion, that the respondent never made any request for conversion of Master Gold Credit Card into Titanium Credit Card, and, as such, the appellant was not entitled to a sum of Rs.3999/- ,charged by it, from him(respondent). He further submitted that the order passed by learned District Forum, being illegal, is liable to be set aside. The learned Counsel for the appellant also submitted that a CD was placed on record, at the time of arguments, before the District Forum but the same was not taken into consideration. An application for additional evidence for proof of conversation recorded in the CD was also filed along with the appeal, on the ground that the same was essential for just decision of the matter. 8. On the other hand, the learned Counsel for the respondent/complainant submitted that no request, whatsoever, oral or written, was however, made by the respondent for conversion of Master Gold Credit Card to Titanium Credit Card, and, as such, the appellant could not charge the amount of Rs.3999/- . He further submitted that the order passed by the learned District Forum, being legal, is liable to be upheld. He further submitted that no ground for production of additional evidence was also made out. 9. First, coming to the application under Order XLI Rule 27(I)(aa)CPC for adducing additional evidence, it may be stated here, that the same is liable to be dismissed, for the reasons to be recorded hereinafter. Sufficient time was granted to the parties to adduce their evidence, by way of affidavits by the learned District Forum. In case, the CD was in possession of the appellant, it could be produced at the time of leading evidence, by way of affidavits ; along with true transcription of the alleged conversation contained therein ; so as to enable the District Forum to take the same into consideration. No party can be allowed to fill in lacuna in its case by moving such an application at the appellate stage. Even otherwise, authenticity of such a CD cannot be vouchsafed because it is not, established, that the said CD contained the voice of the complainant. Even the said CD was not got examined from the expert to find out the authenticity of the contents thereof. It appears to be just an afterthought move, on the part of the appellant, to submit such an application. Since, no other document was produced to establish that any written request was made by the respondent, for conversion of Master Gold Credit Card to Titanium Credit Card, the evidence in the form of CD, sought to be adduced, cannot be said to be essential, for the just decision of the case. The application, being devoid of merit, stands dismissed. 10. Now, coming to the main appeal, it may be stated here that the same is also liable to be dismissed, for the reasons to be recorded hereinafter. Right from the very beginning, the case of the complainant was that he never made any request to the OP, for the purpose of conversion of Master Gold Credit Card to Titanium Credit Card. Had he made any request in writing, the same must have been produced by the OP, at the relevant time. In the absence of any written request or oral request having been made by the complainant, for the conversion of Master Gold Credit Card into Titanium Credit Card, the OP could not convert the same unilaterally. It was a unilateral act on the part of the OP that it converted the Master Gold Credit Card into Titanium Credit Card and charged one time fee of Rs.3,999/- for this act. The District Forum was right in holding that the OP indulged into unfair trade practice. 11. Now coming to the relief which was claimed by the complainant and granted by the District Forum, it may be stated here that the Consumer Fora rightly placed reliance on the guidelines issued by the Reserve Bank of India. Item No.5 dealing with the Protection of Customer Rights and Right to Privacy, reads as under ; “5.(i) Right to privacy – a. Unsolicited cards should not be issued. In case, an unsolicited card is issued and activated without the consent of the recipient and the latter is billed for the same, the card issuing bank/NBFC shall not only reverse the charges forthwith, but also pay a penalty without demur to the recipient amounting to twice the value of the charges reversed. b………… c. The card issuing bank/NBFC should not unilaterally upgrade credit cards and enhance credit limits. Prior consent of the borrower should invariably be taken whenever there are any change/s in terms and conditions.” 12. There is no ambiguity in the guidelines, referred to above. In view of the guidelines, the OP bank was not only required to reverse the charges, on the credit card of the complainant but also to pay a penalty amounting to twice the value, of the charges reversed. The District Forum, thus, was right, in holding so, in view of the aforesaid guidelines. The impugned order passed by the learned District Forum does not suffer from any illegality and infirmity warranting the interference of this Commission. 13. For the reasons recorded above, the appeal, being devoid of merit, must fail, and same is dismissed with costs, quantified at Rs.2000/- 14. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
